Citation Nr: 1040067
Decision Date: 10/26/10 Archive Date: 11/01/10
DOCKET NO. 07-02 451 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the Veteran's
death.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant, J. D., D. S. J.
ATTORNEY FOR THE BOARD
Andrew Mack
INTRODUCTION
The Veteran had recognized Philippine Guerrilla and Combination
Service from October 1944 to April 1946. The appellant is the
Veteran's widow.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a June 2006 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Manila,
Philippines.
In March 2008, a videoconference hearing before the undersigned
Veterans Law Judge was held. A transcript of that hearing is of
record.
In March 2008, the appellant submitted additional medical
evidence directly to the Board, along with a waiver of initial RO
consideration of the evidence. This evidence is accepted for
inclusion in the record on appeal. See 38 C.F.R. §§ 20.800,
20.1304 (2010).
FINDINGS OF FACT
1. The Veteran's death certificate lists his immediate cause of
death as cardio-respiratory arrest and congestive heart failure.
2. At the time of the Veteran's death in November 1991, service
connection was in effect for injury to muscle groups I, II, and
III, right (major) shoulder, residual of gunshot wound (rated 30
percent disabling), and old fracture of the third and fourth ribs
(rated 0 percent disabling); his combined rating was 30 percent.
3. Cardiovascular disease and chronic renal failure first
manifested many years following separation from service, and
there is no persuasive evidence of a medical nexus between
cardiovascular or renal disease and either service or service-
connected disability.
4. A disability of service origin did not cause or contribute
substantially or materially to cause the Veteran's death.
CONCLUSION OF LAW
The criteria for service connection for the cause of the
Veteran's death are not met. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1137, 1310, 5107 (West 2002 & Supp. 2010); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 &
Supp. 2010)) includes enhanced duties to notify and assist
claimants for VA benefits. VA regulations implementing the VCAA
were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a) (2010).
Notice requirements under the VCAA essentially require VA to
notify a claimant of any evidence that is necessary to
substantiate the claim(s), as well as the evidence that VA will
attempt to obtain and which evidence he or she is responsible for
providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183
(2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v.
Principi, 18 Vet. App. 112 (2004), after a substantially complete
application for benefits is received, proper VCAA notice must
inform the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim(s); (2) that VA
will seek to provide; (3) that the claimant is expected to
provide; and (4) must ask the claimant to provide any evidence in
her or his possession that pertains to the claim(s), in
accordance with 38 C.F.R. § 3.159(b)(1).
The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159
has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April
30, 2008). Notably, the final rule removes the third sentence of
38 C.F.R. § 3.159(b)(1), which had stated that VA will request
that a claimant provide any pertinent evidence in his or her
possession.
In a claim for Disability and Indemnity Compensation (DIC)
benefits for the cause of a veteran's death, VA's notice
requirements include (1) a statement of the conditions, if any,
for which a veteran was service-connected at the time of his or
her death; (2) an explanation of the evidence and information
required to substantiate a DIC claim based on a previously
service-connected condition; and (3) an explanation of the
evidence and information required to substantiate a DIC claim
based on a condition not yet service-connected. See Hupp v.
Nicholson, 21 Vet. App. 342 (2007).
VCAA-compliant notice must be provided to a claimant before the
initial unfavorable decision on a claim for VA benefits by the
agency of original jurisdiction (in this case, the RO). Id.;
Pelegrini, 18 Vet. App. at 112. See also Disabled American
Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed.
Cir. 2003). However, the VCAA notice requirements may,
nonetheless, be satisfied if any errors in the timing or content
of such notice are not prejudicial to the claimant. Id.
In this appeal, in November 2005 and March 2006 pre-rating
letters, the RO provided notice to the appellant explaining what
information and evidence was needed to substantiate her claim for
benefits based on service connection for the cause of the
Veteran's death. This letter also informed the appellant of what
information and evidence must be submitted by the appellant and
what information and evidence would be obtained by VA. The June
2006 rating decision reflects the initial adjudication of the
claim after issuance of this letter.
As regards the Hupp requirements, the Board notes that, while the
March 2006 letter provides an explanation of the evidence and
information required to substantiate a DIC claim based on a
previously service-connected condition, neither notice letter
contained a statement of the conditions for which the Veteran was
service-connected at the time of his death. However, a statement
of the conditions for which the Veteran was service-connected at
the time of his death was included in both the June 2006 rating
decision and the October 2006 Statement of the Case (SOC), both
of which were issued to the appellant and to both of which she
provided a written response. Thereafter, the appellant's claim
was readjudicated, as reflected in a March 2007 Supplemental SOC
(SSOC). Therefore, any lack of notice pertaining to the first
Hupp requirement is not prejudicial to the appellant's claim.
As regards the third Hupp requirement, the November 2005 and
March 2006 letters explained the evidence and information
generally needed to substantiate a claim for service connection
for the cause of the Veteran's death, but not specifically as
regards a condition not yet service-connected. However, the
October 2006 SOC provided the criteria to substantiate a cause of
death claim based on a condition not yet service-connected, and
the appellant responded to that SOC with her January 2007
substantive appeal. Therefore, any lack of notice pertaining to
the third Hupp requirement is also not prejudicial to the
appellant's claim.
The record also reflects that VA has made reasonable efforts to
obtain or to assist in obtaining all relevant records pertinent
to the matter on appeal. Pertinent medical evidence associated
with the claims file consists of service, VA, and private medical
records, the Veteran's death certificate, and a letter from a
private physician regarding the Veteran's cause of death. Also
of record and considered in connection with the appeal is the
transcript of the appellant's March 2008 Board hearing, along
with various written statements provided by the appellant, and by
her representative, on her behalf.
The Board finds that no additional RO action to further develop
the record is warranted. The Board acknowledges that the
appellant has not been provided a VA medical opinion regarding
whether a disability incurred in or aggravated by service either
caused or contributed substantially or materially to the
Veteran's death. However, as is explained in detail below, the
Board finds there to be no adequate evidence indicating that any
disability of service origin may related to the cause of the
Veteran's death. Therefore, the Board finds that no reasonable
possibility exists that a VA opinion would aid in substantiating
the appellant's claim and, accordingly, that such VA opinion is
not necessary to decide the instant claim on its merits. See 38
U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Wells v. Principi,
326 F. 3d. 1381, 1384 (Fed. Cir. 2003). See also Duenas v.
Principi, 18 Vet. App. 512 (2004) (per curium).
In summary, the duties imposed by the VCAA have been considered
and satisfied. Through various notices of the RO, the appellant
has been notified and made aware of the evidence needed to
substantiate this claim, the avenues through which she might
obtain such evidence, and the allocation of responsibilities
between herself and VA in obtaining such evidence. There is no
additional notice that should be provided, nor is there any
indication that there is additional existing evidence to obtain
or development required to create any additional evidence to be
considered in connection with this claim. Consequently, any
error in the sequence of events or content of the notice is not
shown to prejudice the appellant or to have any effect on the
appeal. Any such error is deemed harmless and does not preclude
appellate consideration of the matter on appeal, at this
juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543
(2006) (rejecting the argument that the Board lacks authority to
consider harmless error). See also ATD Corp. v. Lydall, Inc.,
159 F.3d 534, 549 (Fed. Cir. 1998).
II. Analysis
Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by active service.
38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection may
be granted for any disease initially diagnosed after service,
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38 C.F.R.
§ 3.303(d).
Service connection may be presumed, for certain chronic diseases,
such as cardio-vascular and renal disease, including
hypertension, which develop to a compensable degree (10 percent
for cardio-vascular and renal disease) within a prescribed period
after discharge from service (one year for cardio-vascular and
renal disease), although there is no evidence of such disease
during the period of service. This presumption is rebuttable by
probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112,
1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). Also,
while the disease need not be diagnosed within the presumptive
period, it must be shown, by acceptable lay or medical evidence,
that there were characteristic manifestations of the disease to
the required degree. 38 C.F.R. § 3.307(c).
To establish entitlement to service connection for the cause of
the Veteran's death, the evidence of record must show that a
disability incurred in or aggravated by service either caused or
contributed substantially or materially to cause death.
38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.
In this case, the Veteran's death certificate indicates that he
died on November 1, 1991, and that the cause of his death was
cardio-respiratory arrest and congestive heart failure.
At the time of his death, the Veteran had the service-connected
disabilities of injury to muscle groups I, II, and III, right
(major) shoulder, residual of gunshot wound, rated 30 percent
disabling, and old fracture of the third and fourth ribs, rated
noncompensable (0 percent).
Service treatment records indicate that the Veteran incurred a
through and through gunshot wound in May 1945, which entered at
the lateral portion of the infraclavicular space and exited at
the mid portion of the medial border of the right scapula,
fracturing the scapula at that point. These records indicate
that such gunshot wound resulted in weakness and inability to
lift the right upper extremity upward. The report of the
Veteran's April 1946 examination for release from active duty
indicates a normal cardiovascular system, normal genitourinary
system, normal chest X-ray, no varicose veins, blood pressure of
120/80, and that moist rales were noted in the upper part of the
right lung.
A May 1980 private medical certificate indicates that the Veteran
complained of severe numbness and weakness of the upper right
extremity. It also indicates that examinations of the heart and
lungs were both "apparently normal." The Veteran's blood
pressure was noted to be 130/90.
The report of a September 1980 VA chest X-ray indicates that the
lung fields were essentially clear, and that the heart was at the
upper limits of normal and showed evidence of left ventricular
prominence.
In a letter dated in April 2006, the Veteran's private physician
certified that the Veteran was hospitalized from September 15,
1989, to September 28, 1989, with diagnoses of acute myocardial
infarction, essential hypertension, and chronic renal failure.
In a letter dated in March 2008, a private physician, Dr. Q.,
noted that the Veteran died due to cardio-respiratory arrest and
congestive heart failure. Dr. Q. opined that the Veteran's cause
of death, along with the diagnosis of chronic renal failure,
pointed to a thrombotic event that had begun before symptoms were
seen or manifested. Dr. Q. stated that arteriosclerosis was
"listed as a chronic disease," and "is caused by formation of
thrombi." Dr. Q. also stated that "[f]ormation and progression
of thrombi to a disease is difficult to determine," but that a
factor that increases such formation is stress of the body during
times of war. Dr. Q. further stated that "[i]t was possible
that illness was present during [the Veteran's] service but no
manifestations of systemic illnesses [were] noted yet," and that
this possibility could not be ruled out "unless medical records
from service and training show[ed] otherwise."
During the March 2008 Board hearing, the appellant testified that
she met the Veteran in 1969. She testified that, at that time,
she thought he had some difficulty breathing, that he had had a
heart attack at some point between 1969 and 1971, and that he had
been hospitalized for heart problems in the late 1970s. She
further testified that the Veteran had told the appellant that he
had had some heart problems and difficulty breathing in service.
Considering the pertinent evidence in light of the governing
legal authority, the Board finds that the claim must be denied.
Initially, the Board notes that the record does not reflect, and
the appellant does not contend, that the Veteran's death was
related to either his service-connected injury to muscle groups
I, II, and III of the right shoulder or his service-connected old
fracture of the third and fourth ribs, or that his in-service
gunshot wound contributed substantially or materially to the
Veteran's death in any other way. Rather, the appellant asserts
that the Veteran's cardio-respiratory arrest and congestive heart
failure, which caused his death, were related to cardiovascular
disease that was incurred in service.
However, the record does not reflect that cardio-respiratory
arrest, congestive heart failure, cardiovascular or renal
disease, or any other condition that may have contributed
substantially or materially to the Veteran's death is related to
service.
Service treatment records do not indicate any cardiovascular or
renal problems. The report of the Veteran's April 1946
examination for release from active duty indicates that he had a
normal cardiovascular system, normal genitourinary system, normal
chest X-ray, no varicose veins, and blood pressure of 120/80.
The Board notes that moist rales were noted in the upper part of
the right lung at the time of the April 1946 examination.
However, there is no evidence that such rales were in any way
related to a condition that contributed substantially or
materially to the Veteran's death. In this regard, the Board
notes that the record contains no indication of post-service
treatment for any lung condition, that a May 1980 private medical
certificate indicates that examination of the lungs was
"apparently normal," and that the report of a September 1980 VA
chest X-ray indicates that the lung fields were essentially
clear.
The earliest evidence of any heart, cardiovascular, or renal
problems is the September 1980 VA chest X-ray report indicating
that the heart was at the upper limits of normal and showed
evidence of left ventricular prominence. In this regard, the
Board notes that a May 1980 private medical certificate indicates
that examination of the heart was apparently normal, and that the
Veteran's blood pressure was noted to be 130/90 at that time. As
there is no evidence of cardiovascular or renal disease within a
one-year period after discharge from service, the presumptive
service connection provisions of 38 C.F.R. §§ 3.307 and 3.309 are
not applicable. Moreover, the passage of many years between
discharge from active service and the medical documentation of a
claimed disability is a factor that tends to weigh against a
claim for service connection. Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000). In this case, the lack of any medical
evidence whatsoever of heart, cardiovascular, or renal problems
until almost 35 years after the Veteran's period of service
weighs heavily against the appellant's claim.
Furthermore, the Board finds that there is no persuasive evidence
of a medical nexus between any cardiovascular or renal disease,
or any other condition that contributed to the Veteran's death,
and either service or service-connected disability. In this
regard, the Board notes the March 2008 opinion letter of Dr. Q.,
but does not find it to be probative of a medical nexus between
the Veteran's death and his service.
The Board notes the decision of the U.S. Court of Appeals For
Veterans Claims (Court) in Bloom v. West 12 Vet. App. 185,
187 (1999). In that case, the Court found that the appellant
"failed to submit medical evidence to provide a nexus between
any in-service injury and the conditions which contributed to the
veteran's death," where the appellant submitted a statement by a
doctor "stating that in his opinion, the respiratory problems
which contributed to the veteran's death 'could' have been
precipitated by his time in a prisoner of war camp," but where
such doctor "did not provide any further support for his
conclusion." The Court found that this statement was
"insufficient to constitute the medical nexus required" to
substantiate the appellant's claim, providing the following
explanation: "Suffice it to say that in this case, Dr. Smith, as
noted above, provided no clinical data or other rationale to
support his opinion; nor is there anything otherwise in the
record that would give it substance. Dr. Smith's opinion sits by
itself, unsupported and unexplained. In other words, his opinion
is purely speculative."
Likewise, in this case, despite the opinion letter of Dr. Q., the
Board finds that the appellant has failed to submit medical
evidence to provide a nexus between any in-service injury or
disease and the conditions which contributed to the Veteran's
death.
Dr. Q.'s initial assertion that the Veteran's cause of death,
with the diagnosis of chronic renal failure, pointed to a
thrombotic event that had started before symptoms were seen or
manifested is unsupported by any clinical data, rationale, or any
evidence in the record that might give it substance; it is
unsupported and unexplained. Dr. Q. provided no explanation for
his conclusion that a thrombotic event had begun before symptoms
were seen or manifested and likely led to renal disease or
cardiorespiratory failure. Furthermore, the medical record does
not contain a diagnosis, medical finding, or any other indication
of a thrombotic event. Again, service treatment records do not
indicate any cardiovascular or renal problems, and the report of
the Veteran's April 1946 examination for release from active duty
indicates that he had a normal cardiovascular system, normal
genitourinary system, normal chest X-ray, no varicose veins, and
blood pressure of 120/80. Also, as late as May 1980, the Veteran
was noted to have had an "apparently normal" evaluation of the
heart, and blood pressure of 130/90.
The Board notes Dr. Q.'s statements that arteriosclerosis was
"listed as a chronic disease" and "is caused by formation of
thrombi," and that "[f]ormation and progression of thrombi to a
disease is difficult to determine" but that a factor that
increases such formation is stress of the body during times of
war. However, the record contains no diagnoses of
arteriosclerosis, and the Board therefore finds Dr. Q.'s
statement that arteriosclerosis was "listed as a chronic
disease" not to be probative. See Reonal v. Brown, 5 Vet. App.
458, 461 (1993) (a medical opinion based on an inaccurate factual
premise is not probative). Furthermore, Dr. Q.'s assertion that
the Veteran may have been forming blood clots during his period
of service due to stress on the body, and that this led to the
conditions surrounding his death more than 45 years later, is
also unsupported by any clinical data, rationale, or any evidence
in the record that might give it substance. This assertion is
contradicted by the service treatment records, and subsequent
medical records, which indicate that the Veteran did not have
cardiovascular or renal problems in service or any cardiovascular
abnormality until approximately September 1980. The Board
therefore finds this assertion to be based on an inaccurate
factual premise as well, and not to be probative. Id.
Moreover, Dr. Q.'s concluding statements that "[i]t was possible
that illness was present during [the Veteran's] service but no
manifestations of systemic illnesses [were] noted yet," and that
this possibility could not be ruled out "unless medical records
from service and training show[ed] otherwise" are also
unsupported and unexplained. In this regard, Dr. Q. did not
specify what illness was possibly present during the Veteran's
period of service, and this statement is again unsupported by any
clinical data, rationale, or any evidence in the record that
might give it substance. Further, regarding Dr. Q.'s statement
that the possibility of systemic cardiovascular illness could not
be ruled out "unless medical records from service and training
show[ed] otherwise," the Board, as discussed above, does find
that the medical records from service show otherwise: service
treatment records show no evidence of blood clots or any
cardiovascular or renal disease, and there is no indication of
arteriosclerosis either during, or any time after, service.
In short, the Board finds Dr. Q.'s entire March 2008 opinion
letter to be purely speculative, unsupported, unexplained, and,
in relevant part, inconsistent with the existing record.
Therefore, the Board finds that this opinion letter is inadequate
as medical evidence that there even might be a nexus between the
Veteran's cardiovascular or renal disease, with which he was
diagnosed prior to his death, and service, or that any disability
of service origin caused or contributed substantially or
materially to cause the Veteran's death.
The Board notes the appellant's testimony during the March 2008
Board hearing that she thought the Veteran had some difficulty
breathing in 1969, that he had a heart attack at some point
between 1969 and 1971, that he had been hospitalized for heart
problems in the late 1970s, and that the Veteran had told the
appellant that he had had some heart problems and difficulty
breathing in service.
The appellant is competent to make these statements, as a lay
person is competent to testify to symptomatology capable of lay
observation. See Charles v. Principi, 16 Vet. App. 370 (2002).
However, again, the record contradicts such statements regarding
cardiovascular problems, as it indicates no such problems either
in service or prior to September 1980.
Furthermore, even considering these statements, they do not
provide a basis for allowance of the claim. In this case, the
claim turns on the medical matter of whether a disability
incurred in or aggravated by service either caused or contributed
substantially or materially to cause the Veteran's death.
See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither
the appellant nor the Veteran have been shown to be other than
laypersons without appropriate medical training and expertise,
neither is competent to render a probative (persuasive) opinion
on a medical matter, such as whether the Veteran incurred a
cardiovascular disorder in service, or whether any disability
incurred in or aggravated by service either caused or contributed
substantially or materially to cause the Veteran's death. See,
e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also
Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is
generally not capable of opining on matters requiring medical
knowledge"). Hence, the lay assertions in this regard have no
probative value.
For all the foregoing reasons, the Board finds that the claim for
service connection for the cause of the Veteran's death must be
denied. In reaching this conclusion, the Board has considered
the applicability of the benefit-of-the-doubt doctrine. However,
as the preponderance of the evidence is against the claim, that
doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R.
§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
Service connection for the cause of the Veteran's death is
denied.
____________________________________________
D. C. SPICKLER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs